Fukuza Hiyo Jangili Leo

[Micymas]

[ATTACH=full]487493[/ATTACH]

[ChifuMbitika]

It’s already in the laws of the land

[Brayo44ki]

Utaprove aje hio cohabitation?

[Tacobra]

Have you ever heard of presumption of marriage…

[Tacobra]

A presumption of marriage/ cohabitation does not create a marriage. It only enables the person who relies on it to make a claim such as on matters to do with the inheritance of the estate of a deceased person. A presumption of marriage does not exist on its own. It only exists in the context of a bigger dispute which the court will be called to adjudicate and determine.

[kipuke]

@Tacobra

A presumption of marriage/ cohabitation does not create a marriage. It only enables the person who relies on it to make a claim such as on matters to do with the inheritance of the estate of a deceased person. A presumption of marriage does not exist on its own. It only exists in the context of a bigger dispute which the court will be called to adjudicate and determine.

Yaani if there is no wealth to squabble over then hakuna kitu?

[MamboYote]

Sasa our courts are just creating laws as They flex their muscles.

[Tacobra]

It has been argued that the Marriage Act 2014 does away with the cohabitation as a form of marriage in Kenya. This can not be further from the legal position. First, the Marriage Act is silent on cohabitation as a form of marriage. It is a principle of law that application of a common law principle only ceases when a law is enacted that expressly bans or goes contrary to it. This, the Marriage Act 2014 did not do. Second, the Laws upon which cohabitation is anchored, namely the Judicature Act and the Evidence Act, are still intact and Kenyan courts continue to rightfully apply them even after the enactment of the Marriage Act 2014. Third, it has been argued that under the Marriage Act, all marriages have to be registered. However, the Marriage Act states that the non-registration of a marriage makes it voidable and not void. This means that such a marriage stays valid until a court voids it on the application of parties. However, as stated earlier cohabitation arise from outside of the Marriage Act hence, it cannot be subject to it.
What Constitutes a Cohabitation?
Not all relationships in which a man and a woman decide to live together will constitute a cohabitation. We also need to remember that such a relationship is never an issue when the parties are living together but that the question only arises when the relationship comes to an end either through a separation or death.
A lawful marriage will be presumed to have taken place where a man and a woman live together as husband and wife, but there is no evidence of any marriage ceremony either customary or statutory. Kenyan courts have held that it is not the length of time that the parties live together that makes it a presumed marriage but rather the quality of the relationship. This is a question of fact. Case laws such as Hortensiah Yawe v Public Trustee (1976) and more recently, SWG v HMK (2010) have held that cohabitation may lead to a presumed marriage if the parameters set hereunder are met:

1. Cohabitation and repute
2. Providing sustenance and shelter
3. Treating the person as a spouse and the other family members treated him/her as such.
4. Evidence of intimate relationship
5. Having children
6. The neighbour principle- where a neighbor looking at the relationship would describe it as a marriage.
7. How do the parties introduce themselves to people
8. Description of a party as a spouse in the official documents, i.e. medical insurance, retirement benefits, insurance covers, etc.
   A cohabitation, under Kenyan law, will not be upheld where a woman was still married to another man as this will be contrary to the Marriage Act which does not allow a woman to get married to two men at the same time however the courts have held that it will be upheld where a man has a subsisting marriage under customary law.
   Dissolution of a cohabitation.
   Where a dispute arises when the parties are alive the courts have held that such a relationship does not require a divorce but ends as it began when a party walks away. It is worthy of note that such parties cannot ask for a division of matrimonial property as there was no divorce. A divorce is only granted by a court of law. So where such a relationship ends the property can be disputed over but not as matrimonial property. This was as was held in the case of SWG v HMK (2010) eKLR and TMW v FMC (2018)eKLR. Such property will be dealt with under the Civil Procedure Act. The court will impute a constructive or resulting trust.
   The general principle of law that he who alleges has to prove. The burden of presumption is on the person who wants it presumed.
   Cohabitation
   Marriage
   

[Tacobra]

@kipuke

Yaani if there is no wealth to squabble over then hakuna kitu?

Yes…crystal clear

[dingoo_wa_ingoo]

@Brayo44ki

Utaprove aje hio cohabitation?

this is no news. it has been the law since the 60’s

umeshawahi skia yawe -vs- public trustee?

[dingoo_wa_ingoo]

@Tacobra

A presumption of marriage/ cohabitation does not create a marriage. It only enables the person who relies on it to make a claim such as on matters to do with the inheritance of the estate of a deceased person. A presumption of marriage does not exist on its own. It only exists in the context of a bigger dispute which the court will be called to adjudicate and determine.

applying presumtion of marriage hapo kwa estate itakuwa ngumu kidogo after peter kaluma’s amendments to the law of succession act.

labda kwa division of matrimonial property.

[Tacobra]

@dingoo_wa_ingoo

applying presumtion of marriage hapo kwa estate itakuwa ngumu kidogo after peter kaluma’s amendments to the law of succession act.

labda kwa division of matrimonial property.

True

[Brayo44ki]

@dingoo_wa_ingoo

this is no news. it has been the law since the 60’s

umeshawahi skia yawe -vs- public trustee?

Not quite conversant with civil law to be honest, but elucidate if you have the time. Mnasaidia elders sana

[dingoo_wa_ingoo]

@Brayo44ki

Not quite conversant with civil law to be honest, but elucidate if you have the time. Mnasaidia elders sana

kwa kifupi yawe alikuwa muganda by birth, and resident in Nairobi. He was killed in a motor vehicle accident in Uganda He was employed as a pilot by the East African Airways Corporation at the time of his death. He died intestate.

The report of Yawe’s death was made by Hortensia WANJIKU. She claimed that she was the deceased’s widow and that she had four children by him. On enquiries being made by the Public Trustee, the Administrator General of Uganda supplied certain information about the Ugandan claimants to the estate. The Public Trustee of Kenya was granted letters of Administration to Yawe’s estate in Kenya. The Ugandan claimants, through their Advocate, gave their particulars to the Public Trustee and also asserted that Hortensia was not married to Yawe. Yes, she had 4 children with him but no certificate of marriage.

The Court of Appeal found in favour of Hortensia. From that decision, the legal principle was established that a lawful marriage will be presumed to be subsisting where a man and a woman live together as husband and wife, but there is no evidence of any marriage ceremony . It is not the length of time that the parties live together that makes it a presumed marriage but rather the quality of the relationship and THAT is a question of fact. A marriage may be presumed to subsist if in addition to long cohabitation there is :

1. Cohabitation and repute

2. Providing sustenance and shelter

3. Treating the person as a spouse and the other family members treated him/her as such.

4. Evidence of intimate relationship

5. Having children

6. The neighbour principle- where a neighbor looking at the relationship would describe it as a marriage.

7. How do the parties introduce themselves to people.

8. Description of a party as a spouse in the official documents, i.e. medical insurance, retirement benefits, insurance covers, etc
   (you appoint that person as your next of kin and name them as your spouse)

[Karoga]

MGTOW= FREEDOM

[uhondo]

Asante kwa hio taarifa @auctioneer

[Lionheart]

@Tacobra

It has been argued that the Marriage Act 2014 does away with the cohabitation as a form of marriage in Kenya. This can not be further from the legal position. First, the Marriage Act is silent on cohabitation as a form of marriage. It is a principle of law that application of a common law principle only ceases when a law is enacted that expressly bans or goes contrary to it. This, the Marriage Act 2014 did not do. Second, the Laws upon which cohabitation is anchored, namely the Judicature Act and the Evidence Act, are still intact and Kenyan courts continue to rightfully apply them even after the enactment of the Marriage Act 2014. Third, it has been argued that under the Marriage Act, all marriages have to be registered. However, the Marriage Act states that the non-registration of a marriage makes it voidable and not void. This means that such a marriage stays valid until a court voids it on the application of parties. However, as stated earlier cohabitation arise from outside of the Marriage Act hence, it cannot be subject to it.
What Constitutes a Cohabitation?
Not all relationships in which a man and a woman decide to live together will constitute a cohabitation. We also need to remember that such a relationship is never an issue when the parties are living together but that the question only arises when the relationship comes to an end either through a separation or death.
A lawful marriage will be presumed to have taken place where a man and a woman live together as husband and wife, but there is no evidence of any marriage ceremony either customary or statutory. Kenyan courts have held that it is not the length of time that the parties live together that makes it a presumed marriage but rather the quality of the relationship. This is a question of fact. Case laws such as Hortensiah Yawe v Public Trustee (1976) and more recently, SWG v HMK (2010) have held that cohabitation may lead to a presumed marriage if the parameters set hereunder are met:

1. Cohabitation and repute
2. Providing sustenance and shelter
3. Treating the person as a spouse and the other family members treated him/her as such.
4. Evidence of intimate relationship
5. Having children
6. The neighbour principle- where a neighbor looking at the relationship would describe it as a marriage.
7. How do the parties introduce themselves to people
8. Description of a party as a spouse in the official documents, i.e. medical insurance, retirement benefits, insurance covers, etc.
   A cohabitation, under Kenyan law, will not be upheld where a woman was still married to another man as this will be contrary to the Marriage Act which does not allow a woman to get married to two men at the same time however the courts have held that it will be upheld where a man has a subsisting marriage under customary law.
   Dissolution of a cohabitation.
   Where a dispute arises when the parties are alive the courts have held that such a relationship does not require a divorce but ends as it began when a party walks away. It is worthy of note that such parties cannot ask for a division of matrimonial property as there was no divorce. A divorce is only granted by a court of law. So where such a relationship ends the property can be disputed over but not as matrimonial property. This was as was held in the case of SWG v HMK (2010) eKLR and TMW v FMC (2018)eKLR. Such property will be dealt with under the Civil Procedure Act. The court will impute a constructive or resulting trust.
   The general principle of law that he who alleges has to prove. The burden of presumption is on the person who wants it presumed.
   Cohabitation
   Marriage
   The most insightful stories about Law - Medium

In brief, what you’re saying is that the Marriage Act created a contradiction in its application, and needs amending.

[Tacobra]

@Lionheart

In brief, what you’re saying is that the Marriage Act created a contradiction in its application, and needs amending.

Not really…a presumption is not a marriage…we have 5 distinctive types of marriages…of which cohabitation is not…cohabitation is good as marriage but it is not … law on applies where there is a dispute…And Again in the good book of our Lord GOD… God doesn’t recognize cohabitation as marriage( HE CALLS IT SIN)…so we go by the Supreme Law of Laws…

[Tacobra]

…Anyways the Law is an Ass…have you heard of that…

[Tacobra]

@dingoo_wa_ingoo

applying presumtion of marriage hapo kwa estate itakuwa ngumu kidogo after peter kaluma’s amendments to the law of succession act.

labda kwa division of matrimonial property.

@dingoo_wa_ingoo …wacha pressure mingi…hope you are not in come we stay situationship…formalize your relationship